The Ninth Circuit Court of Appeals upheld a grand jury subpoena against a Fifth Amendment claim for M.H.’s personal records regarding an account in a Swiss bank. The Fifth Amendment protects individuals from being forced to make self incriminating statements.

The grand jury subpoenaed from M.H.

[a]ny and all records required to be maintained pur-
suant to 31 C.F.R. § 103.32 [subsequently relocated
to 31 C.F.R. § 1010.420] relating to foreign financial
accounts that you had/have a financial interest in, or
signature authority over, including records reflecting
the name in which each such account is maintained,
the number or other designation of such account, the
name and address of the foreign bank or other per-
son with whom such account is maintained, the type
of such account, and the maximum value of each
such account during each specified year.

In plain English the grand jury subpoenaed M.H.’s bank foreign bank records which M.H. was required to maintain by the Bank Secrecy Act of 1970 (BSA). M.H. argued that the provision of the records or the admission that such records do not exist would incriminate him and he claimed that he was protected from providing such by the Fifth Amendment. The government argued successfully that the documents were excluded from Fifth Amendment protection under the Required Documents Doctrine(RDD). Under the RDD documents are exempt from the Fifth Amendment if “(1) the purpose of the government’s inquiry is regulatory, not criminal; (2) the information requested is contained in documents of a kind the regulated party customarily keeps; and (3) the records have public aspects.”

The Court found that the documents subpoenaed under the BSA met the requirements of the RDD for exclusion from the Fifth Amendment requirements. First, as long as the BSA has a regulatory purpose, even though it can also have a criminal purpose, it meets the first criteria of the RDD. Second, most people keep some records regarding their bank accounts. It matters not that the bank also keeps records. Third, while the mere fact that the law requires such records to be kept does not mean that it has a public aspect, that together with the regulatory nature of the act indicates a public purpose.

But who do they think they are fooling. The government admits that the purpose of the grand jury investigation is to determine if M.H. is using the foreign account to avoid paying income tax, which is a crime. Furthermore I suspect that most investigations under the BSA are primarily criminal in nature. The material they are requesting may not be direct evidence of a crime but it certainly helps the government make a criminal case.

The jury convicted Barry Bonds of obstruction of justice and it hung on three counts of perjury. The government will have a chance to retry the perjury counts but it may pass on another trial and be satisfied with the obstruction conviction.

The indictment alleged that the obstruction was committed by evasive answers before the Grand Jury. Bond’s legal team has asked Judge Illston to throw out the conviction. Certainly a conviction for being evasive is a lot weaker without any convictions for perjury. The perjury allegations were that Bonds lied before the Grand Jury. The Grand Jury was investigating BALCO for allegedly providing steroids to sports figures including Bonds. ¹

If Illston does not throw out the conviction there is sure to be an appeal. One question on appeal will probably be the question of whether charging evasive answers meets the preciseness required by due process. Due process requires that charges in a criminal indictment be precise enough to allow a defendant to fight the case and to allow a future court to determine the nature of the charges in order to prevent double jeopardy. The term evasiveness is so vague that it may not meet due process requirements.

Another problem, and this one may face Judge Illston in determining whether to void the conviction, is that the obstruction count charged not only that Bonds was evasive before the jury but that he lied to the jury. Since the jury hung on the perjury charges it is difficult to see how they can convict him on the obstruction count.

In any case its not over until its over and that will be no time soon.

Lawyers for U. S. Attorney Daniel Zachem filed a writ of certiorari with the Supreme Court challenging a D. C. Circuit Court decision denying him immunity in a case in which Zachem and Suzanne Bailey-Jones, a District of Columbia Superior Court official removed Peter Atherton from the grand jury. The rule allows only the presiding judge or his/her designate to remove grand jurors. But after complaints from other members of the grand jury that Atherton was disruptive Zachem went to Bailey-Jones who removed Zachem from the grand jury.

The District Court dismissed Atherton’s suits after ruling inter alia that Bailey-Jones and Zachem were entitled to absolute immunity. The D. C. Circuit ruled that neither Bailey Jones or Zachem had absolute immunity. Absolute immunity only applies to officials when they are acting in judicial or advocacy roles. Both Bailey-Jones and Zachem were carrying out administrative duties and therefore were only entitled to limited immunity. Therefore the Circuit Court revived Altherton’s suit at least until the Supreme Court decides on the writ of certiorari.